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This Week's Feature
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Who Yields at the Intersection of Younger Abstention and ERISA Preemption?
By Jessica H. Munyon
Mirick O’Connell, Worcester, Massachusetts
It is a well-established principle of insurance law that state law claims relating to employee benefits plans covered by ERISA are preempted. An equally-well recognized legal principle, though not often encountered in the area of insurance defense, is the Younger abstention doctrine, which provides that, in certain circumstances, a federal court should abstain from exercising jurisdiction over a matter if there are related, ongoing state proceedings. Younger v. Harris, 401 U.S. 37 (1971). These two principles are pitted against each other in the case of Colonial Life & Accident Ins. Co. v. Massachusetts Comm’n Against Discrimination (MCAD), 584 F.Supp.2d 368 (D. Mass. 2008).
[FULL STORY]
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Legal News
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Supreme Court Decision: Federal Arbitration Act — Class Arbitration
On June 15, 2009, the Supreme Court granted certiorari in Stolt-Nielsen S.A. v. Animalfeeds International Corp., No. 08-1198, to decide whether the Federal Arbitration Act (FAA) authorizes the use of class arbitration proceedings when the parties’ arbitration agreement does not expressly permit class arbitration—an issue that was presented in Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003), but ultimately not decided when that case was remanded for a determination by the arbitrator of whether the parties’ contract was actually silent on the question of class arbitration.
[FULL STORY]
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U.S. DISTRICT COURT (S.D. FLORIDA) — Brenner v. Miller, 2009 U.S. Dist. LEXIS 45530 (5/18/09)
Plaintiff’s Breach of Fiduciary Duty and Breach of Contract Claims Are Not Duplicative of the Legal Malpractice Claim
Defendants moved to dismiss the plaintiff’s breach of fiduciary duty and breach of contract claims as duplicative of the legal malpractice claim. The plaintiff responded that Florida law permits claims for breaches of fiduciary duty as distinct and independent from a claim for legal malpractice; and that a claim for breach of contract is not duplicative of a malpractice claim where the retainer agreement contains express promises which the plaintiff alleges were breached.
[FULL STORY]
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CALIFORNIA APPELLATE COURT — Van Hazewinkel v. Macgurn, 2009 Cal. App. Unpub. LEXIS 3642 (5/8/09)
The “Actual Injury” Statute of Limitations Tolling Exception Begins to Run When Plaintiff Tries to Remedy the Alleged Malpractice
Decedent retained defendant in 1/06 to amend his trust to remove his wife as a beneficiary. After decedent died in 4/06, his son, the successor trustee of the trust, brought a malpractice action against defendant on 8/24/07, alleging, inter alia, that defendant did not properly amend the trust. Defendant moved for summary judgment on the ground the claims were time barred by the one year statute of limitations, Code Civ. Proc. § 340.6, which states that the limitations period accrues when the plaintiff knows, or should know, of the underlying facts, but the period is tolled during the time the plaintiff has not sustained “actual injury.”
[FULL STORY]
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DRI News
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July 1, 2009 Deadline for DRI Elections
Four new Director Elected Nationally seats on the DRI Board of Directors, plus the office of Second Vice President, will be filled at the 2009 Annual Meeting in Chicago, October 7-11. To be considered for either position, a DRI member must first file a Declaration of Candidacy form. For more information, please contact Nancy Parz at DRI headquarters: nparz@dri.org or 312.698.6224. Declarations are due by July 1, 2009.
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Just Added to the DRI Bookstore – Current Issues in Medical Liability and Health Care Law
Medical liability litigation attorneys and health care law attorneys face many varied and distinct issues. Often the separate roles of the health care law attorney and the medical liability litigation attorney become intertwined on overlapping issues, such as e-discovery and informed consent. This publication explores some of these overlapping issues in a comprehensive discussion aimed at providing a good factual background and practical tips for lawyers in both fields. Topics addressed include: the Stark Law; informed consent; Good Samaritan laws; the impact of e-discovery on health care litigation; EMTALA; the impact of Medicare liens on litigation and settlement; the Patient Safety Act; determining the value of medical services as they relate to a plaintiff's damages claim. Click here to pre-order your copy today and for more information on this new release!
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DRI Cares Honor Roll
Are you currently doing pro bono work in your state or working on a service project in your community? If so, as a member of DRI, you belong on the DRI Cares Honor Roll. For years DRI has facilitated opportunities for our members to give back, such as the numerous community service projects and fundraisers that we have sponsored at our seminars and Annual Meetings. Starting with this year's Annual Meeting, DRI would like to take another step and publicly recognize members who donate their time. Whether it is through annual food drives at the holidays, buying a refrigerator for a food bank in crisis, building a Habitat for Humanity house, or notable pro bono work, we want to hear about our members' efforts from the last 12 months. To be added to the DRI Cares Honor Roll, please e-mail the following information to dricares@dri.org:
- Name of the participant
- Name of the firm
- Organization for which work is or has been provided in the last 12 months
- Brief description of the work that is or has been done
- Permission to include this information in the DRI Cares section of the DRI website
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MDLA Files Amicus Brief in Leavitt v. Brockton Hospital
The Massachusetts Defense Lawyers Association (MDLA) is pleased to report its contribution to Leavitt v. Brockton Hospital, 07-01257 (June 9, 2009), a decision recently issued by the Massachusetts Supreme Judicial Court. The case imposes a significant limitation on the potential tort liability of medical providers to nonpatient third parties. Michael Riseberg of Adler Pollock & Sheehan P.C. in Boston and Chad Brouillard of Foster & Eldridge, LLP in Cambridge filed an amicus brief on behalf of the MDLA. The court held that a medical provider does not owe a duty to control a patient to prevent the patient from causing harm to a third party. The court did not overturn previously recognized exceptions to this general rule for the failure to warn of the effects of prescription medications and for the failure of mental health professionals to control institutionalized patients.
[FULL STORY]
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And The Defense Wins!
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DRI members Michael LeVangie and Eric Emanuels of Prout ● LeVangie in Sacramento, California successfully defended the first action ever taken to hearing by the California Department of Public Health Services in an effort to revoke a skilled nursing facility’s license. The California Department of Public Health Services issued three AA citations against Colonial Healthcare, Inc. alleging the facility was responsible for three separate deaths over a 24-month period. In addition to the three citations, the public health department filed an accusation with the California Board of Administrative Hearings seeking to revoke Colonial Healthcare’s license. After six weeks, the California Department of Public Health Services reduced the citation levels and dismissed its request for revocation of the facility license.
[FULL STORY]
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DRI member Brian A. Vandiver of the Little Rock, Arkansas office of Cross, Gunter, Witherspoon & Galchus, P.C., recently obtained a defense verdict for an international private jet manufacturer in an invasion of privacy and outrage case tried to a jury in Pulaski County, Arkansas. The plaintiff, a former employee, alleged that the company invaded his privacy and intentionally inflicted emotional distress upon him when performing a reasonable suspicion illegal drug screen.
[FULL STORY]
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DRI members Jay Barry Harris and Hema Patel Mehta of Fineman Krekstein & Harris in Philadelphia successfully obtained a dismissal of an insured’s claim for breach of contract and bad faith against American Western Home Insurance Company. In a case of first impression in the Commonwealth of Pennsylvania, Judge Blewitt of the U.S. District Court for the Middle District of Pennsylvania granted American Western Home’s motion for summary judgment enforcing the vacancy and secured premises warranties to defeat a claim for coverage.
[FULL STORY]
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The U.S. District Court for the Eastern District of Tennessee found Blount Memorial Hospital was entitled to immunity under the Health Care Quality Immunity Act (HCQIA) for suspending and eventually revoking a physician’s privileges. Successfully representing the hospital were DRI members Leah Gerbitz and Alison Martin of Miller & Martin PLLC in Chattanooga, Tennessee. The plaintiff physician is a nephrologist who had chronic disruptive behavior problems at the hospital for a number of years. Eventually the hospital took action to revoke his hospital privileges and after the administrative hearing was completed, the physician sued the hospital in federal court alleging constitutional, tort and contact claims.
[FULL STORY]
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On April 1, 2009 a Portland, Oregon jury awarded a defense verdict to a condo renovation contractor after a three week construction defect trial. DRI members Jack Levy and Kathrin Dragich of Smith Freed & Eberhard, P.C. tried the case, which was Oregon’s first condo conversion lawsuit to go all the way to a jury verdict. The plaintiff homeowners association sued the developers (as a company and two people individually), the mechanical contractor, the roofer, two window manufacturers and the renovation contractor who painted the building exterior and installed replacement windows. The project was a 10-story building in Portland’s trendy West Hills neighborhood, originally constructed in 1965, but converted to condominiums within 10 years of the lawsuit. The building had water intrusion damage at windows and decks, which the contractor argued could be repaired on a localized, limited basis.
[FULL STORY]
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DRI wants to hear about your win! Send a short summary and recent photo of yourself to Barb Lowery by email (blowery@dri.org).
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Leader Spotlight
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This week’s DRI leader spotlight is focused on Kenton J. Coppage, a leader in DRI’s Life, Health and Disability Committee. He is a partner in the Atlanta office of Smith Moore Leatherwood LLP. Kent’s practice is concentrated in ERISA and life, health and disability insurance litigation. His ERISA experience includes the defense of employee benefits determinations, breach of fiduciary duty claims, and statutory penalty claims.
[FULL STORY]
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Legislative Tracking
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Fueled by DRI’s Young Lawyers Committee, this week’s report highlights legislation from South Carolina. The Young Lawyers Legislative Subcommittee is led by co-chairs Emily Turner Landry of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC in Memphis, Tennessee and Sean W. Shirley of Balch & Bingham LLP in Birmingham, Alabama, plus vice-chair Paul A. Wilhelm of Dykema Gossett PLLC in Detroit, Michigan. Special thanks to these leaders, along with all of the other state contributors.
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SOUTH CAROLINA (Contributor: Shelton Haile, Richardson Plowden & Robinson, P.A.)
PRACTICE OF LAW
H*3123
• Relating to the prohibition against any person practicing or soliciting the cause of another person in a court of this state unless he has been admitted and sworn as an attorney, so as to provide that a person must be enrolled as a member of the South Carolina Bar pursuant to applicable court rules, or otherwise authorized to perform prescribed legal activities by action of the Supreme Court of South Carolina in order to either practice law or solicit the legal cause of another, and to provide that the type of conduct that is the subject of any charge filed pursuant to this section must have been defined as the unauthorized practice of law by the Supreme Court of South Carolina prior to any charge being filed.
• Signed by the Governor on 6/2/09
[MORE]
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Quote of the Week
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Education is when you read the fine print. Experience is what you get if you don't.
—Pete Seeger
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DRI CLE Calendar
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Climate Change in the Obama Administration: The Status of Proposed Global Warming Policies and Legislation (webcast)
June 18, 2009
Insurance Bad Faith and Extra-Contractual Claims
June 18-19, 2009
Seaport Hotel, Boston, Massachusetts
Defending the Wrongful Death Wound Infection Claim: "The Resident Died with a Wound, Not Because of a Wound" (webconference)
June 30, 2009
DRI's National Workers' Compensation Review
August 17-18, 2009
Orlando World Center Marriott, Orlando, Florida
Construction Law
September 10-11, 2009
The Palace Hotel, San Francisco, California
Nursing Home/ALF Litigation
September 10-11, 2009
The Westin Kierland, Scottsdale, Arizona
Strictly Automotive
September 24-25, 2009
Hilton La Jolla Torrey Pines, La Jolla, California
Appellate Advocacy
November 5-6, 2009
Hilton La Jolla Torrey Pines, La Jolla, California
For all other seminars, webconferences and webcasts, click here.
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Trucking Policyholder's Duty to Preserve Coverage
Defending Damages Claims in Business Tort Cases
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